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ACAS Code changes on a worker's right to be accompanied

The new ACAS Code of Practice on Disciplinary and Grievance Procedures (the “Code”) came into force on 11 March 2015. The only change is a clarification on the operation in practice of a worker’s statutory right to be accompanied to disciplinary or grievance meetings (s.10 of the Employment Relations Act 1999 referred to below as “the legislation”).

The new Code confirms that a worker’s request for a companion must be reasonable, but this does not mean that the companion themselves must be a reasonable companion.

It is sufficient that they fall within one of the statutory categories of companions, being fellow workers, trade union representatives and officials employed by the trade union (provided that the union certifies that they are a competent companion).

The legislation specifies that the right to be accompanied is conditional on the worker making a “reasonable request”. The legislation does not define this, which led to uncertainty over whether the requirement was for the request to be reasonable or for the companion himself/herself to be a reasonable choice. The previous ACAS Code suggested the latter, stating that a worker should not request a companion that would prejudice the hearing or impose practical difficulties, for example by being based in a remote geographical location. This position was called into doubt in Toal v GB Oils. The EAT confirmed that a worker has an absolute right to request a choice of companion from one of the statutory categories, provided that the request to be accompanied is itself reasonable.

The new Code reflects the decision in Toal by confirming that:

Employers must agree to a worker’s request to be accompanied by a companion chosen from one of the statutory categories;

The worker’s request itself must be reasonable, which will be considered in all the circumstances. The worker should allow the employer reasonable time and provide them with the information required to deal with their request; and

A worker may alter their choice of companion, but this will not cause a significant risk of delay as the postponed date of the meeting must be reasonable and in any case not more than five working days from the original proposed date.

Although the changes mean that there is no basis for an employer to challenge the reasonableness of a requested companion, this is likely to have limited practical effect. The new Code aims to limit practical difficulties by stating that it is good practice for workers is to choose a companion based in the same, rather than a remote, workplace location.

If an employer has a concern about a particular companion, for example if they are conflicted by involvement in the investigation, arranging a satisfactory replacement companion will limit the risk of challenge. Compensation for breach of the right to be accompanied is limited to a maximum of two week’s pay. The decision in Toal indicated that such compensation would likely be nominal unless the worker is able to demonstrate a particular detriment which has been caused by the chosen companion not being available.

Therefore, if an equally capable replacement has been utilised it may be difficult to point to such a detriment. However, if a materially less experienced companion has been involved and the worker is able to point to aspects of the proceedings where a trade union representative’s experience may have helped challenge the case being put that may well justify the two week award. Although not dealt with in terms in the new Code it would seem likely that a similar approach might be adopted in determining the extent to which a failure to comply with the legislation would be viewed in the context of a breach of the new Code. In other words, not all breaches of the legislation would be expected to result in an uplift to compensation (which can be up to 25%) by virtue of that also being treated as a breach of the new Code.

Disciplinary and grievance procedures should be reviewed to ensure that these reflect the new Code. Employers should also watch this space following Vince Cable’s January announcement that the Code is due for a review given the changes in workplace dispute resolution since the last review five years ago.

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